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State v. Greene

Court of Special Appeals of Maryland

January 31, 2019


          Circuit Court for Baltimore City Case No. 117362037

          Meredith, Nazarian, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          MOYLAN, J.

         A flurry of intense Supreme Court activity in the decade from June of 1967 through June of 1977 produced a weighty body of criminal-constitutional law that has generally been referred to simply as "identification law." The thrust of this opinion is that, notwithstanding that impressive body of constitutional doctrine, every time that the word "identification" is used in a case or an issue involving identification somehow arises in a case is not necessarily the occasion to invoke constitutional identification law. The mere word "identification" need not set off the constitutional fire bell. Just as there have been, since 1967, numerous constitutional issues involving identification law, there always have been and will continue to be numerous non-constitutional issues that may, coincidentally, involve the subject of identification. As will be more fully discussed infra, there may be, for instance, a constitutional chasm of difference between what we will call selective identification issues and other merely confirmatory identification issues. We need to look at identification issues more closely before invoking the constitution.

         The Charge

         The appellee, Daniel Joseph Greene, was indicted on December 28, 2017, in the Circuit Court for Baltimore City, for the first-degree murder of Jon Hickey. The appellee moved pre-trial to suppress both an out-of-court and an in-court identification of him by Jennifer McKay as the man depicted in a surveillance video tape. Following a hearing on August 20, 2018, the suppression hearing judge granted the appellee's motion. Appropriately, the State filed an appeal.

         The State Appeal

         The State filed its appeal on August 20, 2018. The appeal is authorized by Maryland Code, Courts and Judicial Proceedings Article, Section 12-302(c)(4). Pertinent are subsections (c)(4)(iii) and (iv):

(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.
(iv) Except in a homicide case, if the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. In that case, the State may not prosecute the defendant on those specific charges or on any other related charges arising out of the same incident.

(Emphasis supplied).

         The record was filed with this Court on October 23, 2018. Accordingly, our decision must be rendered no later than February 20, 2019. We heard oral argument on January 7, 2019.

         A Suppression Motion Based On Identification Law

         As part of an omnibus ten-pronged pre-trial motion pursuant to Maryland Rule of Procedure 4-252, the appellee moved for the suppression of both an out-of-court identification and an in-court identification of the appellee. The grounds asserted were that the identifying witness, Jennifer McKay, had been subjected to impermissibly suggestive procedures pursuant to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and its progeny in the course of the identification procedure. Sections 5 and 6 of the omnibus motion claimed:

5. That any identification of the Defendant made at a pre-trial identification procedure be suppressed as having been obtained by an impermissibly suggestive process, and in violation otherwise, of this Defendant's Constitutional or other legal rights.
6.That the in-court identification of this Defendant be suppressed as the product of a pre-trial identification process which was impermissibly suggestive, or which otherwise violates the Constitutional and other legal rights of the Defendant.

(Emphasis supplied).

         After the appellee chose constitutional identification law as the suppression hearing battleground, everyone else followed suit. There were, to be sure, enough surface similarities to familiar identification law to make that an easy mindset into which to fall. The challenge based on identification law was the sole focus of the suppression ruling and that is the only issue brought before us on this State appeal.

         The Wrong Pew In The Wrong Church

         Although we have elected to consider, purely arguendo, constitutional identification law as an alternative holding, our basic feeling is that this case is, quite to the contrary, not a case involving familiar constitutional identification law at all.

         The facts are unusual. The victim, Jon Hickey, was murdered in his Fells Point apartment in the early morning hours of November 29, 2017. Several days after the murder, the police recovered a surveillance video from the house next door to Jon Hickey's apartment. It apparently showed a figure attempting to enter the Hickey apartment. The police believed that that unknown figure may have been the murderer.

         Accordingly, Jennifer McKay was asked to come to the police station to see if she could identify the figure on the video cam recording. She readily assented. As of the time of the murder, Jennifer McKay had been involved in an intimate romantic relationship with Jon Hickey for several months. Prior to that, Jennifer McKay had been involved in an intimate relationship with the appellee for five years. She and the appellee, moreover, had known each other well since childhood. A strong theory as to murderous motive was the appellee's jealousy at having been replaced by Jon Hickey.

         At the police station, Jennifer McKay was shown the relatively brief footage recorded by the video cam. It was not in evidence. The police interview with Jennifer McKay, however, was recorded and later transcribed. It was the police behavior during that interview that was the exclusive focus of the suppression hearing.

         There Was No Selective Process In Play

         Over the decades, it has been recognized that the very purpose of constitutional identification law has been to guarantee the reliability of the selection process. Whenever a witness is asked to select the wrongdoer from a line-up of suspects, to select a photograph of the wrongdoer from a photographic array, or otherwise to select the wrongdoer from a larger group, the law's concern is that the selection process be untainted by the police slipping the answer, by word or by more subtle behavior, to the witness.

         In this case, by contrast, there was no selection process in play. Jennifer McKay was not asked to look at three separate video cam tapes and to select the one with the appellee in it. Jennifer McKay was asked simply to confirm, if she could, that the man on the surveillance tape was the appellee, Daniel Greene. Jennifer McKay's knowledge of the appellee's appearance was absolute, beyond any peradventure of a doubt. All that Jennifer McKay was asked to do could as readily have been asked of the appellee's mother or of his best friend or of his probation officer.

         The difficult question in this case involved not Jennifer McKay's ability to identify the appellee but rather the quality of the picture or tape she was being asked to review. Was it a good picture or was it an essentially unrecognizable picture? How far away was the subject from the camera? Was the scene well-lit or dark? Did the subject ever turn and look at the camera? Did the camera have any adverse impact on color? She was not looking at high school yearbook photos but at possibly blurred and ambiguous images.

         The Reliability Factors Are Totally Inapplicable

         Since Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), impermissible suggestiveness is nothing more than a threshold question. The primary concern is with ultimate reliability. Our focus is now on the reliability factors articulated by Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In the present day, almost the entire attention of constitutional identification law is on these reliability factors. In the case before us, however, those reliability factors are utterly irrelevant. Classic identification law is simply inapplicable. How then do we apply the heart of identification law if the heart of identification law is irrelevant?

         "I Think So" Versus "I Know So"

         If this case is not about identification law, what then is it about? A fair reading of the suppression hearing transcript and a fair reading of the transcript of the police interview of Jennifer McKay reveal clearly that what really concerned the appellee and defense counsel and the suppression hearing judge was a discernible effort by the police to coach the witness. Any suggestiveness, however, concerned not whom Jennifer McKay would select. There was no selective identification. It concerned how forcefully or persuasively Jennifer McKay would testify. The police wanted to prime her to be a more effective witness.

         The police interview of Jennifer McKay was fundamentally friendly and amicable at all times. The exchanges were relaxed and pleasant. Jennifer McKay, moreover, was not ultimately affected by any police suggestiveness. She identified the appellee as the man on the video cam tape at the very outset of her interview. She identified him in almost precisely the same terms at the very end of the interview. In response to the very first police question, Jennifer McKay responded:

DET. O'CONNOR: Does he look like anybody?
MS. MCKAY: It looks like Dan.
DET. O'CONNOR: Why does it look like Dan?
MS. MCKAY: The beard.
DET. O'CONNOR: Anything else?
MS. MCKAY: The build. DET. O'CONNOR: Okay.

(Emphasis supplied).

         There was obvious difficulty with the quality of the tape, particularly with the effect that "night vision" had on color.

DET. O'CONNOR: Take a look at them.
MS. MCKAY: It kind of looks like him.
DET. VAUGHN: Just remember the night vision is there.
DET. O'CONNOR: So, the colors are the things you're looking at aren't really the same.
MS. MCKAY: What they are, right, right. So what color would that jacket be?
DET. O'CONNOR: I don't know.
MS. MCKAY: Okay.

(Emphasis supplied).

         At another point, another detective showed her a photographic array.

DET. VODERK: All right. Do you recognize anyone?
DET. VODERK: What number was the person you recognized?
MS. MCKAY: Number four I believe. The top one.
DET. VODERK: Okay. Who is that person?
MS. MCKAY: Daniel Greene.
DET. VODERK: Okay. And how do you know Daniel Greene?
MS. MCKAY: He's my ex-boyfriend.

(Emphasis supplied).

         The pictures she viewed convinced Jennifer McKay that the appellee had killed Jon Hickey.

DET. O'CONNOR: . . . . [W]hat do you think happened to Jon?
MS. MCKAY: Someone killed him.
DET. O'CONNOR: Someone?
MS. MCKAY: Dan did.
DET. O'CONNOR: Why do you say that?
MS. MCKAY: Pictures.

(Emphasis supplied).

         At the end of the interview, her position was unchanged.

DET. VAUGHN: When you look at those pictures, I know you said that it looks like Dan. Is that Dan on those pictures?
MS. MCKAY: (Affirmative nod).
DET. VAUGHN: You're shaking your head.
MS. MCKAY: Yeah.

(Emphasis supplied).

         Any problem the police had was exclusively with Jennifer McKay's degree of certainty. Her answers were consistently and invariably "I think so" rather than the prosecutorial desideratum "I know so." At one point she explained that her answer meant that it "looks more like him than it doesn't look like him."

MS. MCKAY: It looks very much like him. But I mean, I can see small differences. Like that, the face frame. But (inaudible) looks more like him than it doesn't look like him.

         (Emphasis supplied). She is not being uncertain about Daniel Greene. What was uncertain was the quality of the surveillance footage.

         When the police tried to urge her to be more sure, Jennifer McKay remained adamant ...

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